Little Sisters v. Obamacare update

Many mainstream media write of today’s Supreme Court arguments on the ACA’s contraceptive mandate (about which I wrote at greater length already) with at least faint insinuation that Justice Alito would be pulling the rug out or doing a bait-and-switch if he side with the Little Sisters of the Poor. For instance, Adam Liptak of the New York Times:

Justice Samuel A. Alito Jr., writing for the majority in [Hobby Lobby], said there was a better alternative to the mandate, one that the government had offered to nonprofit groups with religious objections. That alternative, which is at issue in the new case, allows nonprofit groups like schools and hospitals that are affiliated with religious organizations to avoid fines if they inform their insurers, plan administrators or the government that they seek an exemption from the coverage requirement.

Justice Alito wrote approvingly of the accommodation, which shifts contraceptive costs to others, calling it “an approach that is less restrictive than requiring employers to fund contraceptive methods that violate their religious beliefs.”

(Emphasis added)

In context, Alito was not really writing “approvingly” of the accommodation, but merely noting that it was “less restrictive” than requiring coverage, which is a key element in making a RFRA case (unless you decide to argue that the governmental interest isn’t “compelling,” as former Congressman Bart Stupak’s Amicus Brief implies — a very hard sell these days).

Liptak concludes the block quote honestly, in a sentence I withheld until now: “But he did not say the accommodation was lawful.”

The question of whether the less restrictive alternative was lawful had already been joined in lower federal courts, and Alito wasn’t jumping the gun and deciding the lawfulness of the accommodation, as applied in every imaginable case, without full briefing and argument.

Of course, a still less restrictive accommodation is outright exemption, as enjoyed by powerful players with no religious scruples about contraception, like Exxon, Pepsi Bottling, Chevron, Visa, New York City and the United States Military. Liptak:

Many other employers are also effectively exempt from the contraception requirement. Small employers need not offer health coverage, and some insurance plans that had not previously included contraception coverage are grandfathered, so long as they do not make substantial changes to the plans.


  • “Many employers are effectively exempt” from cooperative with the government
  • in accomplishing its “compelling interest,” but
  • the cosmos would be thrown out of balance if a group of nuns were not compelled to cooperate by
  • “shift[ing] the cost to” their own insurance company, which
  • supposedly isn’t going to reckon on this when setting premiums for its insureds’ plans.

This is the Achilles Heel of much legislation that burdens some people’s or groups’ religious convictions: powerful interests almost always lobbied for a sweeter deal than religious objectors are getting. Unless the Courts can be convinced that the burden on religion is insubstantial, sincere religious objectors should win every case where their treatment is worse than the sweetest deal someone else gets under the law.

And that’s as it should be if religious freedom is “our first freedom.”